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Born to Run

By August 2, 2006News & Features
Photo by Hugh Williams

It doesn’t get any better than this.

Late May, breezy, bright and crisp, 60 degrees in the nation’s capital.

Seth Waxman throws back an espresso at the Cleveland Park Starbucks and crosses Connecticut Avenue, heading down into Rock Creek Park.

He “runs, rides, rows or swims” nearly every day before heading to the downtown D.C. law firm of WilmerHale, where he co-heads the appellate and Supreme Court practice group. He’s shed 40 pounds he gained working in the Justice Department from 1994 to 2001, the last four as President Clinton’s solicitor general, the so-called 10th justice of the American legal scene.

His teaching at Georgetown University Law Center is on his mind this morning. He’s a member of the faculty due to teach sovereignty in the fall. His syllabus isn’t exactly done.

“We just had a going away party last night for a colleague of mine that is leaving the firm to be a professor,” Waxman says, descending into the park’s shaded world. Cars cloud the main thoroughfare, and Waxman has eyed a turn-off to a quiet route.

“She’s leaving now to prepare for the fall, and was surprised to learn that I hadn’t really started working on my course,” he continues. “She said, ‘You know, you just can’t do these things overnight.’”

We merge onto a paved path and settle into a 10-minute mile pace. He’ll go for six miles, an even hour, giving an interview the entire time — and doing the vast majority of the talking. Waxman is a great talker; he makes his reputation and living that way. It simplifies my role as a jet-lagged but jogging reporter.

He switches the topic to music. He loves music, mostly rock. He grew up in Hartford, Conn., playing keyboards and percussion, at times in a high school rock band with his buddies. He considered joining a conservatory, but headed to Harvard University, where he got his bachelor’s degree en route to Yale Law School. Friends are trying to get him to join their band. He doesn’t have the time.

But that reminds him of a talk he gave at the Supreme Court in 2000, when he was nearing the end of his term as solicitor general. The “SG” defends acts of Congress and coordinates appellate litigation for the entire federal government, deciding which cases to take on appeal and which legal positions to take — often choosing between competing positions from various segments of the sprawling U.S. bureaucracy.

An older woman from the crowd of D.C. denizens raised her hand during the Q&A session, he recalls. Who might be one of his professional heroes?

Bruce Springsteen.

Standing there in the Supreme Court, that’s who came to mind.

“I’m a terminal Bruce Springsteen fan,” Waxman shrugs as beads of sweat begin to form on his face.

He has tickets to a show later in May, at which Springsteen will perform songs from “The Seeger Sessions,” his take on folk icon Pete Seeger. Waxman hasn’t bought the CD yet; he wants to hear the songs live first.

“He’s just someone I could always relate to,” Waxman says. “I mean, he’s about my age, and he’s always seemed to stand for something.”

Honest, but a lead balloon in those quarters.

“The reaction seemed to be, ‘Who on earth is Bruce Springsteen and what does he have to do with the Supreme Court?’”

Waxman’s OK with that. He’s not out to impress anyone, having long ago established his ability to do that in the highest ranks. He’s crafted the career he wants: a chance to shape the law and take the cases that matter to him, all while living a rich personal life.

Waxman joined the Justice Department after 15 years as a successful D.C. trial lawyer, though one with limited Supreme Court experience. Now he’s about as in-demand as any private appellate specialist in the country, handling a mix of high-profile pro bono and paying work.
He got the juvenile death penalty tossed out last year in Roper v. Simmons, a landmark 5-4 decision in which the court reversed its position from 1989.

He secured the constitutionality of the Bipartisan Campaign Reform Act for clients John McCain and Russell Feingold, the senators who sponsored the bill, in a 2003 decision that concluded one of the most closely watched High Court disputes of the past decade.

And, he represents corporate clients like Monsanto and the Walt Disney Co. as well as various governmental bodies, providing general litigation and counseling services in addition to his appellate expertise.

It’s no surprise to anyone who watched Waxman as solicitor general that he’s created a thriving private appellate practice. He lost almost as many cases as he won as SG, but that isn’t the point; losing comes with defending laws that a majority of the justices don’t like. Even in defeat, the justices demonstrated high regard for him, says Miguel Estrada, who co-chairs Gibson, Dunn & Crutcher’s appellate group with Theodore Olson, President Bush’s first solicitor general.

“Seth became extremely gifted at putting matters in ways that catch the Supreme Court’s attention — at pitching to the sweet spots of the justices,” says Estrada, who also worked under Waxman in the solicitor general’s office. “They developed a great deal of confidence in him. They continue to treat him with a great deal of respect and show him a deference that they show maybe just a handful of other lawyers who go before them.”

That’s the real reason Waxman’s name is on the shortlist for high-stakes appeals, whether the client is the general counsel of a giant corporation or the director of a group opposing the death penalty. Success in this practice rests less on substantive expertise than on the skill set of writing the meticulous, well-positioned brief, of sparring with the justices.
Perfect for Waxman, who can’t linger in any one area for too long. He’s fascinated by everything. “It’s actually a very interesting case” is his standard way of starting to talk about a client matter. (And, “Anyway, that’s probably more than you wanted to hear” is a common way of ending a five-minute riff.)

Exercise is the same for him. He is swimming less these days, running and biking more, after injuring his shoulder while skiing earlier in the year — an injury he thinks he may have aggravated during extreme yoga, when the heat is turned up and the body is ultra-limber. A few years back, he was running less after sustaining quad injuries windsurfing and mountain biking.

“At age 54, I don’t want to wear out any particular part of my body before the other ones wear out, which is why I try to alternate sports,” he says.

He’s a “free spirit,” acknowledges Jamie Gorelick, a partner at WilmerHale who’s been his friend since their days at Harvard.

“He’s always been the same way: adventuresome, with a lot of personality,” she says. “He’s always had a real love of life.”

Rather than heading straight to law school after graduating from Harvard in 1973, Waxman went to Kenya. He won a fellowship to produce a photographic essay of an African village. After arriving, he discovered the only way to really immerse himself in a village was to either teach or practice medicine. He taught English, math, physical education, history, literature and geography. Naturally, he took four weeks off to volunteer picking cotton in the fields of Israel because the workers were off fighting in the Yom Kippur War.

We jog down a path that is rough and wet in spots, requiring us to slow to a near walk. If dropped here blindfolded, you wouldn’t know if you were in or even close to a major city. It is peaceful, inviting Waxman’s introspection about his most controversial case.
In Dickerson v. U.S., he chose to not defend an act of Congress — as solicitor generals are generally obligated to do — and instead to defend the Miranda rights of a bank robbery suspect whose factual guilt was little in question. The case brought to a head the 30-year war between the Justice Department and conservative factions that disdained the landmark 1966 decision.

In 1968, Congress passed Section 3501 of the Criminal Code, which allowed a confession to be admitted as evidence even if the suspect hadn’t received his Miranda warning — so long as the confession was voluntary. Section 3501 had languished for decades with the Justice Department abiding by Miranda and the Supreme Court applying it as precedent.

The issue boiled over when accused bank robber Charlie Dickerson won suppression of part of the fruits of his confession in the nation’s most conservative judicial circuit, the 4th U.S. Circuit Court of Appeals. Senior U.S. District Judge James Cacheris had suppressed the confession because the FBI agents failed to Mirandize Dickerson. On appeal, the Justice Department did not defend Section 3501 — and in fact prohibited the local U.S. attorney’s office from arguing on its behalf. The 4th Circuit relied on amicus briefing by University of Utah professor Paul Cassell on behalf of the Washington Legal Foundation to foment its ruling allowing Dickerson’s statement admitted.

“Fortunately, we are a court of law and not politics. Thus, the Department of Justice cannot prevent us from deciding this case under the governing law simply by refusing to argue it,” wrote 4th Circuit Judge Karen Williams for the court. In her opinion, she also wrote that the Justice Department’s policy “may have produced — during an era of intense national concern about the problem of runaway crime — the acquittal and the nonprosecution of many dangerous felons, enabling them to continue their depredations upon our citizens. There is no excuse for this.”

The stage was set for the U.S. Supreme Court to decide whether Congress could lawfully override Miranda. Waxman says that the solicitor general should defend an act of Congress whenever respectable arguments can be made in support of the act’s constitutionality. However, he believed 3501 could not be reconciled with Miranda.

Attorney General Janet Reno agreed. She and Waxman rode to the White House together and explained their decision to the president, with whom Waxman enjoyed a good working relationship.
Clinton gave Waxman the green light to defy Congress, saying “I did not get elected to overturn Miranda.”

With the SG on the side of Miranda, the Supreme Court appointed Cassell to defend 3501. The opinion issued by the court just three months after the case was argued put an end to the debate.

“Congress may not legislatively supersede our decisions interpreting and applying the Constitution,” wrote Chief Justice William Rehnquist, no fan of Miranda. Despite that, he crafted a 7-2 majority for the administration — but not without a blistering dissent from Justice Antonin Scalia, who accused the majority of giving itself an “immense and frightening antidemocratic power.”

“After that,” Waxman says of Rehnquist’s decision, “a lot of the criticism directed at me over the case went away.”

For lawyers, real-life drama doesn’t get much better than that. How could his next job be anything but a disappointment?

Waxman was stewing over that very question during a late lunch at Galileo, an Italian restaurant downtown. He had just finished meeting with TV Watch, a coalition of groups and individuals that oppose government control of programming. Waxman is handling ABC’s challenge of an FCC fine imposed when Dennis Franz’ “NYPD Blue” character Andy Sipowicz said “bullshit.” Waxman was having a policy discussion with the group about his client’s and the other networks’ basis for challenging the FCC.

After the Clinton administration ended, Waxman was more than a little burnt out. He took six months off to relax, teach and go on a diet. Then he considered four options: joining a non-profit organization as general counsel, taking a similar job for a corporation, teaching full time or practicing at a law firm.

Waxman couldn’t picture himself as a full-time scholar.

“I don’t even like reading law-review articles, never mind writing them full time,” he confesses over a mozzarella salad. “I also came to realize that, having grown up as a litigator, it’s really hard for me to produce work product without a deadline — and, more to the point, a deadline that affects somebody else’s life and not just mine.”

Waxman fends off a server who wants his plate; he wants the last slices of mozzarella and tomato before moving on to his fish entrée.
He liked the idea of returning to a collegial law-firm environment while creating his own mix of paid and unpaid legal work. That’s the deal he struck with Wilmer Cutler & Pickering, before joining as a partner in 2001. (The firm became WilmerHale after it merged with Boston’s Hale and Dorr in 2004.) Waxman spends about 50 percent of his time on paying clients; and a quarter apiece on pro bono work and teaching.

“It’s the best of all worlds,” he says, forming a smile. “It also keeps me from addressing the fact that I probably have a very severe undiagnosed attention-deficit problem.”

Waxman has always felt some anxiety about where to devote his legal efforts. Out of law school, he didn’t know whether to join the Justice Department’s civil rights division or to try private practice. After a clerkship with U.S District Judge Gerhard Gesell, in D.C., he opted to get trial experience at the litigation boutique of Miller Cassidy Larroca & Lewin.

With the support of firm partners, Waxman jumped on a slew of pro bono cases from the get-go. The first one he took as lead counsel haunts him. He represented Jack House, a man on Georgia’s death row, who was convicted of killing two 7-year-old boys. Waxman won a ruling from a federal magistrate judge that House was denied effective assistance of counsel. The district court judge overseeing the case denied the habeas corpus petition, but Waxman succeeded in getting the 11th U.S. Circuit Court of Appeals to order the writ.

Among other problems with the case, Waxman says, was that House’s lawyer left the courthouse during his client’s testimony — just so he could plug a parking meter.

In addition, House, a father of two young daughters, did not have a criminal record. New witnesses and blood tests also supported the man’s claims of innocence. But when local prosecutors decided to retry the case, House took a plea deal that took the death penalty off the table and gave him the hope of parole. Waxman says his client could not face the possibility of execution and never seeing his daughters again.

“I was mortified, because this guy was innocent,” Waxman says. House, never granted parole, remains in prison.

Perhaps no victory in Waxman’s career, though, can loom larger than Roper v. Simmons, in which he won a ruling that executing juveniles is cruel and unusual punishment. Just 16 years earlier, the high court held in Stanford v. Kentucky that such executions were lawful.

Christopher Simmons’ crime was heinous. He and another perpetrator kidnapped a woman from her home, bound and gagged her and threw her from a bridge into the Meramec River in Missouri. Simmons was 17 at the time.

Waxman credits his victory, in large part, to advances in the scientific understanding of juvenile brains that developed after Stanford. The medical establishment accepted that a 17-year-old does not have a fully developed brain or sense of responsibility. The American Medical Association, the American Psychological Association and other groups filed briefs in support of Simmons.

It also helped that in 2002, the court had outlawed the death penalty for mentally retarded people in Atkins v. Virginia. In briefs and arguments, Waxman pointed to evolving standards of decency as evidenced by the many states that had done away with juvenile death sentences, making it a true rarity in America, as it is in the rest of the world.

Justice Anthony Kennedy, who had sided against Kevin Stanford in 1989, cited this argument in his majority decision favoring Simmons: “Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”

“It was a huge victory,” says Virginia Sloan, the founder and president of the Constitution Project, which assisted Waxman with the case. “It was so important that Seth argue this case, because there’s nobody who knows how to litigate better before the Supreme Court than him. And he didn’t have to take the case.”

Sloan has known Waxman since the late 1970s, when she worked on the House Judiciary Committee and Waxman testified before the committee on habeas and criminal-appeals issues, drawing on his pro bono experience at Miller Cassidy. In recent years, he’s worked with Sloan’s group by testifying against reforms that would streamline the habeas process. His opinion is invaluable, Sloan says, because Waxman is a top expert on the issue and has the respect of both sides of the political aisle.

A regular stream of pro bono work kept Waxman at Miller Cassidy — where he eventually became the firm’s managing partner. If not for that, he likely would have made an earlier jump to government service. At Miller Cassidy, he mixed white-collar criminal defense and civil litigation involving the government. Waxman got his first Supreme Court case in 1992, with Withrow v. Williams.

That year, the court appointed Waxman to represent Robert Williams, who was convicted of murder in Michigan but had prevailed in his habeas petition before the 6th U.S. Circuit Court of Appeals. Waxman got the justices to affirm and conclude, by a 5-4 vote, that Williams’ confession was involuntary and in violation of Miranda.

The day foretold many such days to come. Oral arguments were held on the day that Waxman’s future boss, then-Gov. Clinton, was elected to the presidency. His opponent was Principal Deputy Solicitor General John Roberts, the present chief justice of the Supreme Court.

Estrada worked under Roberts at the time, and remembers watching the arguments. He was struck by Waxman’s intensity and obvious passion for his client.

Waxman remembers making a few introductory points before the justices interrupted him with questions; the rest is a complete blur to him now.

“But as soon as the red light went off, my first reaction was, ‘I want to do this again,’” he says.

He didn’t have to wait too long for that chance. Clinton selected Reno as his attorney general and she, in turn, lured Gorelick to be her deputy attorney general. Gorelick recruited Waxman into the Justice Department in 1994 as an associate deputy attorney general. Two years later, Waxman took the role of principal deputy solicitor general under Walter Dellinger. When Gorelick left, Waxman became Reno’s deputy and when Dellinger left, he became acting solicitor general. By the time Clinton formally nominated him for solicitor general, Waxman held three titles at the Justice Department.

“I may have been the only person in the government who genuinely was reporting to himself,” he says.

Despite the politically tense atmosphere of the time, the Senate Judiciary Committee unanimously approved Waxman’s nomination. The full Senate confirmed him by a voice vote, all within a matter of weeks, in the fall of 1997. It didn’t hurt that Republican Sen. Orrin Hatch, from Utah, the chair of the judiciary committee, was a former client of Waxman’s.

Lawyers also credit his ease of confirmation with his reputation as a straight-shooter who puts the law above politics. Estrada, who remained in the solicitor general’s office under Clinton, says that Waxman lived up to his good name.

“He ran a professional, nonpolitical office that just tried to get the job done,” he says. “I was a conservative Republican working for him under Clinton, and I don’t think I remember even having the slightest political discussion with Seth as it related to a case.”

Jeffrey Lamken, who also worked under Waxman, was impressed by his boss’s boundless supply of energy.

“I was constantly amazed at the quantity of information we had to push his way to satisfy his appetite and curiosity, to make sure he understood everything he possibly could about a case,” says Lamken, who now heads the Supreme Court and appellate practice at Baker Botts. “That’s crucial before the Supreme Court because you never know where the justices will go with their questions.”
Of course, that doesn’t always lead to victory. Waxman’s tenure as solicitor general was marked by a Supreme Court at the height of its federalism phase. The court was actively tearing down laws enacted by Congress, reining in the federal government in favor of state’s rights.

Waxman took his share of those cases on the chin — always by a 5-4 majority, always winning over the same dissenters, Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens. The court’s orientation on federalism gave Waxman little chance of victory, Estrada says. His predecessors, Kenneth Starr and Dellinger, lost their fair share of federalism cases, as well.

“I think in many of those cases Jesus Christ could have come down and argued these cases, and I don’t think the outcome would have changed,” Estrada says.

Waxman recalls a particular low point, June 23, 1999. That day he lost three cases involving the sovereign immunity of states; in all three, the 5-4 majority sided with state agencies that were sued in federal courts. Waxman was vacationing in Martha’s Vineyard with his family when the FedEx package with the decisions arrived from his secretary. He took only the dissents to the beach that day.

“My wife wondered why I was so happy,” Waxman says. “I said, ‘These are the dissents. They’re marvelous.’”

He loves winning, but losing those cases never got under his skin. That’s because Waxman competes against himself — in work and in play. He was never big on team sports. There’s no traditional winning or losing in his self-imposed regimen of running, biking, swimming and kayaking. It’s just about pushing yourself, looking for a challenge, doing your best.

The same can be said for an advocate, in Waxman’s mind. Coming one vote short before an established court isn’t a stain on the solicitor general. Not if he did his best, which Waxman believes he did.
“Do I, in hindsight, when all is said and done, really feel like I wrote the best brief and did everything I could to fully prepare and present my case to the court? The answer to those questions is very nearly always ‘Yes.’”

Waxman lost plenty of other big cases as solicitor general. For example, he failed in his defense of the line-item veto, a big legislative aim of the administration, which the High Court struck down in a 6-3 vote. Overall, Waxman estimates he won 15 or 16 of the 30 total cases he argued in the solicitor general’s office.

The same lesson applies in private practice. While he overwhelmingly gets successful results these days, he still loses his share of cases. Last year, Lamken won a unanimous decision against Waxman on behalf of Rancho Palos Verdes, Calif., which had blocked a resident from building a cellular tower on his property. Mark Abrams had turned to Waxman to argue that he could sue the city for damages under federal civil rights law.

With a chuckle, Lamken says the case is a perfect example of how most disputes turn on their legal merits and not the lawyers involved.

“The law was on our side,” he says.

We move from lunch to a conference room at WilmerHale, where Waxman has time for a few more questions as today is relatively slow. Yet he had already held six meetings on pending cases before his 11:30 a.m. meeting with TV Watch.

Among his clients is TiVo, which has retained Waxman to defend on appeal its recent trial victory over EchoStar for infringing on TiVo’s time-warping patent. He is representing the National Resources Defense Council in its suit against the EPA for allegedly failing to adequately regulate the pesticide methyl bromide. Though the D.C. Circuit found the NRDC didn’t have standing to bring the suit, the group is filing a petition for an en banc rehearing. Waxman also is working on litigation strategy for Monsanto following its loss before the U.S. Court of Appeals for the Federal Circuit, which upheld the Patent and Trademark Office’s decision not to issue patents for small fragments of cloned DNA in plants, called expressed sequence tags.

Waxman credits his colleagues at WilmerHale for his ability to handle such a vast range of cases at any given time. The quality of their work gives him peace of mind.
“I’m now actually working with a whole group of people who are smarter than me and better writers than me,” he says. “Last week alone I took on three new cases, and now they’re staffed with a team that lets me sleep at night.”

A few minutes after 4 p.m. an apologetic Waxman has to get back to work. He is a little late for a conference call with another client, the National Association of Attorneys General, whose massive tobacco industry settlement he is defending. Evening meetings are also on the schedule.

Which is why we found ourselves jogging and talking in Rock Creek Park at 7 the next morning. “It’s just a great way to start the day because, no matter what else happens, I feel like I’ve accomplished something,” he says.

Several weeks later, we talk again. He had spent the previous week hiking in Yosemite and biking in Napa and Sonoma. The year before, he took his family — wife Debbie Goldberg, two sons, 25 and 17, and a daughter, 20 — on a three-week excursion to Tibet. Later this year, he and Debbie are kayaking in Alaska.

Throughout, we talk almost as much about exercise as about his cases and career. The parallel between his compulsion toward diverse and challenging pursuits on both frontiers is obvious. But work is not a game to Waxman. He’s not grinding it out in the high-stakes appellate world only for himself, for some type of fix — the professional equivalent of skiing off a cliff or jogging more miles.

I ask him about the Springsteen show. He describes it as “totally refreshing, exuberant and joyful.” He says it was a “musical revival” of sorts, with the audience “transported, taken to another place.”

That’s why he admires the Boss, who is legendary for his live performances, for giving his all each night. With Springsteen it’s a matter of principle; he does it for his audience.

And that’s how Waxman views working for his clients, litigating the hell out of their cases, each a live set, Monsanto’s DNA fragments and a juvenile on death row bearing equal interest and weight. It’s the life of a serious advocate, one who doesn’t have a favorite case, or a favorite Springsteen album.

“He really gives it his all every time he goes out there to perform,” Waxman says. “That’s pretty much what I try to do.”

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